Federal officials said Monday that they have unlocked the iPhone belonging to one of the San Bernardino shooters and are dropping a request in front of a federal judge that sought to force Apple to help with that effort.

The move comes a week after officials announced a "third party" had come forward to help investigators unlock the phone without help from the computer giant. It's unclear what the FBI found on the phone.

"Our decision to conclude the litigation was based solely on the fact that, with the recent assistance of a third party, we are now able to unlock that iPhone without compromising any information on the phone," prosecutors said in a statement.

NSA whistleblower Edward Snowden said on Tuesday that if Donald Trump is sincerely concerned about the government’s ability to listen in on his private communications, he should fix the NSA mass surveillance programs that collect data on every American.

Snowden, speaking remotely from Moscow, was interviewed by The Intercept’s Jeremy Scahill at the South by Southwest Conference in Austin, Texas, for Scahill’s Intercepted podcast.

Snowden did not validate Trump’s wild accusation that President Obama had “tapped” the wires in Trump Tower. “If Donald Trump or anyone else wants us to take this seriously, they have to show evidence,” Snowden said. “And the fact that they have not despite the severity of this allegation means that they’re trying to make political hay — I suspect — out of something that affects all of us, which is that mass surveillance is making all of us vulnerable.”

Snowden explained that the NSA’s surveillance dragnet currently allows any analyst with an appropriate clearance to search a massive database of communications for phones or IP addresses related to anyone, including the president. He was describing the Upstream program conducted under Section 702 of the Foreign Intelligence Surveillance Act, in which the NSA collects a vast number of American communications from internet cables entering and exiting the United States, ostensibly only “targeting” foreigners.

“If Donald Trump wants to take this seriously, he needs to fix the problem that everyone in America’s communications are being collected right now, without a warrant, and they’re going into the bucket, and they’re protected by very lax internal policy regulations, and this simply is not enough,” said Snowden.

“The problem is not, ‘Oh, you know, poor Donald Trump.’ You’re the president. You should be asking questions about ‘Why was this possible in the first place?’ and ‘Why haven’t I fixed it?’”

Far from trying to eliminate the NSA’s authorities under Section 702, Trump supports having Congress extend the programs past this year, when they would otherwise expire — while at the same time continuing President Obama’s refusal to give the legislative branch even a ballpark estimate of what proportion of domestic communications they capture.

Shadow Brokers are at it again, this time offering apparent Windows exploits and toolkits. The timing of this does not seem coincidental. If Shadow Brokers are to be believed, they've been holding the tools for some time and just now releasing the Windows toolkits. Previously, they have released other tool sets, but nothing that operated against or exploited Windows.

On Good Friday and ahead of the Easter holiday, the Shadow Brokers have dumped a new collection of files, containing what appears to be exploits and hacking tools targeting Microsoft's Windows OS and evidence the Equation Group had gained access to servers and targeted the SWIFT banking system of several banks across the world.

The tools were dumped via the Shadow Brokers Twitter account and were accompanied by a blog post, as the group did in the past.

Called "Lost in Translation," the blog post contains the usual indecipherable ramblings the Shadow Brokers have published in the past, and a link to a Yandex Disk file storage repo.

When the National Security Agency began using a new hacking tool called EternalBlue, those entrusted with deploying it marveled at both its uncommon power and the widespread havoc it could wreak if it ever got loose.

Some officials even discussed whether the flaw was so dangerous they should reveal it to Microsoft, the company whose software the government was exploiting, according to former NSA employees who spoke on the condition of anonymity given the sensitivity of the issue.

But for more than five years, the NSA kept using it — through a time period that has seen several serious security breaches — and now the officials’ worst fears have been realized. The malicious code at the heart of the WannaCry virus that hit computer systems globally late last week was apparently stolen from the NSA, repackaged by cybercriminals and unleashed on the world for a cyberattack that now ranks as among the most disruptive in history.

The failure to keep EternalBlue out of the hands of criminals and other adversaries casts the NSA’s decisions in a harsh new light, prompting critics to question anew whether the agency can be trusted to develop and protect such potent hacking tools.

Current and former officials defended the agency’s handling of EternalBlue, saying that the NSA must use such volatile tools to fulfill its mission of gathering foreign intelligence. In the case of EternalBlue, the intelligence haul was “unreal,” said one former employee. “It was like fishing with dynamite,” said a second.

The NSA did not respond to several requests for comment for this article.

The consequences of the NSA’s decision to keep the flaw secret, combined with its failure to keep the tool secure, became clear Friday when reports began spreading of a massive cyberattack in which the WannaCry software encrypted data on hundreds of thousands of computers and demanded a ransom to decrypt it.

The attack spread virally because the criminal hackers combined EternalBlue’s ability to penetrate systems with other code that caused it to spread quickly, like a computer worm, something the NSA never intended. The resulting digital concoction snarled hospitals in Britain, the Interior Ministry in Russia and tax offices in Brazil.

An unlikely combination of voices, ranging from the American Civil Liberties Union to a top Microsoft official to Russian President Vladmir Putin, has singled out the NSA for its role in creating and eventually losing control of computer code.

Microsoft President Brad Smith, in a blog post Sunday, compared the mishap to “the U.S. military having some of its Tomahawk missiles stolen.”

Putin, for his part, echoed Microsoft: “They said that the first sources of this virus were the United States intelligence agencies. Russia has absolutely nothing to do with this.”

While few critics are saying that the NSA should never develop malicious software — cracking into the computers of surveillance targets is key to its work — the WannaCry incident has revived concerns about internal security at an agency that in 2013 lost massive troves of secret documents to contractor Edward Snowden.

“They’ve absolutely got to do a better job protecting [the hacking tools]. You can’t argue against that,” said former NSA director Keith B. Alexander, who ran the agency from 2005 to 2014 but said he was unable to comment on any particular tool. “You had somebody stealing you blind. The government has got to do better at that.”

The global backlash to the Snowden revelations added urgency to the government’s efforts to revamp rules on when to report flaws to companies and when to use them for surveillance. Alexander said that about 90 percent of discovered flaws are reported to the companies that make the software.

Richard Ledgett, who retired last month as the NSA’s deputy director, said disclosing all flaws would amount to “unilateral disarmament.” He said the idea that “everything would be just fine” if the NSA disclosed all the vulnerabilities it finds is “nonsense.”

Russian military intelligence executed a cyberattack on at least one U.S. voting software supplier and sent spear-phishing emails to more than 100 local election officials just days before last November’s presidential election, according to a highly classified intelligence report obtained by The Intercept.

The top-secret National Security Agency document, which was provided anonymously to The Intercept and independently authenticated, analyzes intelligence very recently acquired by the agency about a months-long Russian intelligence cyber effort against elements of the U.S. election and voting infrastructure. The report, dated May 5, 2017, is the most detailed U.S. government account of Russian interference in the election that has yet come to light.

Federal Government Contractor in Georgia Charged With Removing and Mailing Classified Materials to a News Outlet

A criminal complaint was filed in the Southern District of Georgia today charging Reality Leigh Winner, 25, a federal contractor from Augusta, Georgia, with removing classified material from a government facility and mailing it to a news outlet, in violation of 18 U.S.C. Section 793(e).

Winner was arrested by the FBI at her home on Saturday, June 3, and appeared in federal court in Augusta this afternoon.

“Exceptional law enforcement efforts allowed us quickly to identify and arrest the defendant,” said Deputy Attorney General Rod J. Rosenstein. “Releasing classified material without authorization threatens our nation’s security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.”

According to the allegations contained in the criminal complaint:

Winner is a contractor with Pluribus International Corporation assigned to a U.S. government agency facility in Georgia. She has been employed at the facility since on or about February 13, and has held a Top Secret clearance during that time. On or about May 9, Winner printed and improperly removed classified intelligence reporting, which contained classified national defense information from an intelligence community agency, and unlawfully retained it. Approximately a few days later, Winner unlawfully transmitted by mail the intelligence reporting to an online news outlet.

Once investigative efforts identified Winner as a suspect, the FBI obtained and executed a search warrant at her residence. According to the complaint, Winner agreed to talk with agents during the execution of the warrant. During that conversation, Winner admitted intentionally identifying and printing the classified intelligence reporting at issue despite not having a &quot;need to know,&quot; and with knowledge that the intelligence reporting was classified. Winner further admitted removing the classified intelligence reporting from her office space, retaining it, and mailing it from Augusta, Georgia, to the news outlet, which she knew was not authorized to receive or possess the documents.

An individual charged by criminal complaint is presumed innocent unless and until proven guilty at some later criminal proceedings.

The prosecution is being handled by Trial Attorney Julie A. Edelstein of the U.S. Department of Justice’s National Security Division’s Counterintelligence and Export Control Section, and Assistant U.S. Attorney Jennifer Solari of the U.S. Attorney’s Office for the Southern District of Georgia. The investigation is being conducted by the FBI.

Russian military intelligence executed a cyberattack on at least one U.S. voting software supplier and sent spear-phishing emails to more than 100 local election officials just days before last November’s presidential election, according to a highly classified intelligence report obtained by The Intercept.

The top-secret National Security Agency document, which was provided anonymously to The Intercept and independently authenticated, analyzes intelligence very recently acquired by the agency about a months-long Russian intelligence cyber effort against elements of the U.S. election and voting infrastructure. The report, dated May 5, 2017, is the most detailed U.S. government account of Russian interference in the election that has yet come to light.

Federal Government Contractor in Georgia Charged With Removing and Mailing Classified Materials to a News Outlet

A criminal complaint was filed in the Southern District of Georgia today charging Reality Leigh Winner, 25, a federal contractor from Augusta, Georgia, with removing classified material from a government facility and mailing it to a news outlet, in violation of 18 U.S.C. Section 793(e).

Winner was arrested by the FBI at her home on Saturday, June 3, and appeared in federal court in Augusta this afternoon.

“Exceptional law enforcement efforts allowed us quickly to identify and arrest the defendant,” said Deputy Attorney General Rod J. Rosenstein. “Releasing classified material without authorization threatens our nation’s security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.”

According to the allegations contained in the criminal complaint:

Winner is a contractor with Pluribus International Corporation assigned to a U.S. government agency facility in Georgia. She has been employed at the facility since on or about February 13, and has held a Top Secret clearance during that time. On or about May 9, Winner printed and improperly removed classified intelligence reporting, which contained classified national defense information from an intelligence community agency, and unlawfully retained it. Approximately a few days later, Winner unlawfully transmitted by mail the intelligence reporting to an online news outlet.

Once investigative efforts identified Winner as a suspect, the FBI obtained and executed a search warrant at her residence. According to the complaint, Winner agreed to talk with agents during the execution of the warrant. During that conversation, Winner admitted intentionally identifying and printing the classified intelligence reporting at issue despite not having a &amp;quot;need to know,&amp;quot; and with knowledge that the intelligence reporting was classified. Winner further admitted removing the classified intelligence reporting from her office space, retaining it, and mailing it from Augusta, Georgia, to the news outlet, which she knew was not authorized to receive or possess the documents.

An individual charged by criminal complaint is presumed innocent unless and until proven guilty at some later criminal proceedings.

The prosecution is being handled by Trial Attorney Julie A. Edelstein of the U.S. Department of Justice’s National Security Division’s Counterintelligence and Export Control Section, and Assistant U.S. Attorney Jennifer Solari of the U.S. Attorney’s Office for the Southern District of Georgia. The investigation is being conducted by the FBI.

U.S. Magistrate Judge James Orenstein's written decision provided support to Apple's decision as it fights a California judge's order to create specialized software to help the FBI hack the San Bernardino phone.

Orenstein concluded that Apple is not obligated to assist government investigators against its will and noted that Congress has not adopted legislation that would achieve the result sought by the government.

"How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago," Orenstein wrote. "But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive."

President Obama indicated on Friday that he won’t pardon NSA whistleblower Edward Snowden, even as President-elect Donald Trump announced his pick to run the CIA: Kansas congressman Mike Pompeo, who has called for “the traitor Edward Snowden” to be executed.

Pompeo has supported nearly unfettered NSA surveillance, has blamed Muslim leaders for condoning terror, and is one of the most hyperbolic members of Congress when it comes to describing the Islamic State, which he has called “an existential threat to America” and “the most lethal and powerful terrorist group ever to have existed.”

In an interview with Obama published on Friday, German newspaper Der Spiegel asked: “Are you going to pardon Edward Snowden?” Obama replied: “I can’t pardon somebody who hasn’t gone before a court and presented themselves, so that’s not something that I would comment on at this point.”

But P.S. Ruckman, editor of the Pardon Power blog said Obama is wrong to suggest he couldn’t pardon Snowden if he wanted to. Ruckman noted that Obama has previously only granted pardons and commutations to people who have already been convicted. “I just think what he may have better said is: ‘I prefer that he present himself to a court and then we’ll talk turkey.’ But technically in terms of the Constitution, there are no restrictions at all.”

The operative Supreme Court ruling, from 1886, states that “The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.”

Obama said that although Snowden “raised some legitimate concerns,” he “did not follow the procedures and practices of our intelligence community.”

Obama also suggested that the debate is between people holding two extremist positions: people who “think we can take a 100-percent absolutist approach to protecting privacy” and “those who think that security is the only thing and don’t care about privacy.”

Very few people actually occupy either extreme. But Pompeo, a three-term congressman and former Army officer, is about as close as it comes to the latter.

In a 2014 letter, Pompeo accused Snowden of “intentional distortion of truth that he and his media enablers have engaged in.” Pompeo supports virtually no legal barriers to having the NSA spy on Americans, and has alarmed civil liberties advocates with many of the positions he has taken while serving on the House Intelligence Committee. Not only has he argued that the NSA should resume its phone records program, he has called on Congress to “pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database.”

Pompeo is also a staunch defender of the prison at Guantanamo Bay, calling it an “important national asset,” and repeatedly arguing that closing the facility would endanger Americans. He has also defended CIA torturers, saying that “these men and women are not torturers,” and that “the programs being used were within the law.” He called the exhaustive, 6,000-page Senate torture report “some liberal game being played by the ACLU and Sen. Feinstein.”

Mike Pompeo said more needed to be done to stem what he called an increase in the leaking of state secrets to ‘undermine the United States and democracy’

Excerpts:

“In some ways, I do think [leaking has] accelerated,” Pompeo told MSNBC in an interview broadcast on Saturday. “I think there is a phenomenon, the worship of Edward Snowden, and those who steal American secrets for the purpose of self-aggrandizement or money or for whatever their motivation may be, does seem to be on the increase.”

Pompeo added: “It’s tough. You now have not only nation states trying to steal our stuff, but non-state, hostile intelligence services, well-funded – folks like WikiLeaks, out there trying to steal American secrets for the sole purpose of undermining the United States and democracy.”

In his MSNBC interview on Saturday, Pompeo predicted the Trump administration will have success in deterring leakers “as well as punishing those who we catch who have done it”.

Winner has been accused of leaking classified information about Russia to the media. Prosecutors say she emailed a highly classified document to The Intercept, who in turn published the report online.

The report claims Russian military intelligence hacked at least one unnamed voting software supplier in the United States, and attempted to gain access to more than 100 local election officials prior to last November's general election.

"What makes the case unique is that we're dealing with national security information," said defense attorney Titus Nichols. "We've been assigned a third-party, a confidential information security officer. That individual will have the responsibility of protecting and safeguarding any classified information."

Rachel Maddow explains how an ostensible top secret NSA document submitted through the show's inbox is likely a fake, and points out the perils of such forgeries to news organizations trying to report out important stories like the Trump Russia story.

MSNBC host Rachel Maddow gave a “heads up” to other news organizations on Thursday after she was sent what she believes are faked National Security Agency documents alleging collusion between a member of the Trump campaign and Russian government.

“Somebody, for some reason, appears to be shopping a fairly convincing fake NSA document that purports to directly implicate somebody from the Trump campaign in working with the Russians in their attack in the election,” Maddow said in a lengthy segment on her show.

She suggested that the unidentified muckraker who sent her the fake documents hopes to undermine news organizations in general and deflate the Trump-Russia collusion investigation, which has been going on for nearly a year.

“This is news, because: why is someone shopping a forged document of this kind to news organizations covering the Trump-Russia affair?” Maddow asked.

On June 7, an unidentified person sent documents to an online tip line for Maddow’s show, she said.

That was two days after The Intercept published legitimate NSA documents that were stolen by Reality Winner, a contractor for the agency.

Maddow said that the documents sent to her show appeared to have used The Intercept’s published documents as a template. Secret ID markings on The Intercept reports appeared on the documents passed to Maddow.

She said that metadata from the set of documents sent to her show preceded the publication of the documents published in The Intercept. Maddow suggested that it was possible that whoever sent her the forgeries had access to The Intercept documents. But she also theorized that whoever sent her the fake documents could have changed the metadata somehow.

The documents Maddow received appeared legitimate at first glance, she said, but several clues suggested that they were forgeries.

Typos and spacing issues raised eyebrows, but it was secret markings on the documents as well as their contents that convinced Maddow and her staff that the records were fakes.

But Maddow said that that “the big red flag” for her and her team was that the document she was given named an American citizen — a specific person from the Trump campaign — who allegedly cooperated with the Russians during the presidential campaign.

“We believe that a U.S. citizen’s name would not appear in a document like this,” asserted Maddow, who said that her team consulted national security experts on the matter.

“And so, heads up everybody,” Maddow warned.

The host pointed to two recent retractions — one at CNN and the other at Vice News — and suggested that they were the result of a similar scheme to undermine news outlets covering Trump.

In the case of CNN, three reporters were fired after the network retracted an article alleging that Trump transition team official Anthony Scaramucci was under investigation for ties to a Russian investment fund.

CNN said that the three reporters were fired because of shortcomings in their reporting process, but the network has been tight-lipped about what those shortcomings were.

Vice retracted two articles about a Trump robot display at Disney World.

“One way to stab in the heart aggressive American reporting on [the subject of Trump-Russia collusion] is to lay traps for American journalists who are reporting on it,” said Maddow.

“And then after the fact blow that reporting up. You then hurt the credibility of that news organization. You also cast a shadow over any similar reporting in the future…even if it’s true.”

Maddow did not provide details about who sent her team the faked NSA documents.

But she concluded her segment saying, “We don’t know who’s doing it, but we’re working on it.”

The Intercept, a national-security news site, wouldn’t exist without the most famous leaker of the 21st Century, Edward Snowden. The organization was established in 2014 to publish material from the former National Security Agency contractor and to reveal other government secrets and push for press rights.

It should have been the last place a news source would have to worry about protection and confidentiality. And indeed, the organization funded by eBay founder Pierre Omidyar includes some world-class security experts.

But early last month, the site — founded by the crusading journalists Glenn Greenwald, Jeremy Scahill and Laura Poitras — came under fire for inadvertently failing in that core mission. Now, having taken a deep look at what happened, the Intercept has adopted some reforms and its parent company is helping a young whistleblower who has been charged under the Espionage Act.

To recap: The Trump administration charged 25-year-old Reality Leigh Winner, a former Air Force linguist, with leaking classified information — just hours after the Intercept published a story based on a National Security Agency document describing efforts by Russian military intelligence to hack into America’s voting system.

Barton Gellman, a leading national-security journalist and former Washington Post staffer, pointed to “egregious mistakes” by the site’s reporters as they tried to verify the NSA document before publication. He called what happened “a catastrophic failure of source protection,” while acknowledging that Winner would have been the lead suspect under any circumstances.

A month later, the Intercept and its parent company, First Look (both are funded by Omidyar) are taking steps to fix their mistakes and help defend Winner.

“As the news outlet Winner is accused of leaking to, The Intercept has a unique perspective on her case and a passionate desire to see her receive a fair trial — even though we had no idea who our source was and still have no independent knowledge of the source’s identify,” Reed said in a statement Tuesday.

Helping Winner’s case will take two forms, she said.

First Look’s Press Freedom Defense Fund will pay for a law firm to support her current defense lawyers. And it will give $50,000 in matching funds to Stand With Reality, a grass roots crowdfunding campaign intended to increase public awareness and support legal work for the young whistleblower.

Winner has been charged under the 100-year-old Espionage Act, the same arcane law that the Obama administration began using to charge leakers, including Snowden.

“The First Amendment, not the Espionage Act, should be the framework for viewing the act of whistleblowing,” Reed said.

Reed said that the Intercept has been examining its practices for source protection, and, in this case, found them wanting.

“At several points in the editorial process, our practices fell short of the standards to which we hold ourselves” for keeping risks to sources at a minimum, Reed said. “We should have taken greater precautions to protect the identity of a source who was anonymous even to us.”

The Justice Department would have charged Winner without the Intercept’s mistakes. Still, the apparent sloppiness was regrettable, to say the least.

Last month, the tech site Ars Technica wrote that the Intercept team inadvertently exposed its source because a hard copy, sent for verification purposes to an NSA source, provided physical clues to who may have leaked it. The journalists reportedly also let their NSA contact know where the document had been mailed from, which further pointed to Winner.

Reed, who declined for legal reasons to go into detail about what happened, told me the entire staff would be retrained in best practices and that new levels of editorial scrutiny would be put in place. No staffers will be fired.

The Intercept’s founding principles are transparency and accountability, and its mission remains important.

So, it’s heartening to see the site, and its parent company, doing everything in their power to admit and make good on their own mistakes. And it’s important that they’ll help Winner be treated fairly at the hands of an administration that could hardly be more averse to press rights.

The Justice Department is seeking to impose extreme secrecy rules in the trial of alleged Intercept source and whistleblower Reality Winner that could prevent her defense team from citing countless publicly available news articles in appearances before the court — and even prevent Winner herself from seeing evidence relevant to her defense.

On July 20, Winner’s defense lawyers moved to challenge those arguments, accusing the government in a court filing of attempting to use the pre-trial discovery process to unfairly gag them from discussing issues both vital to the case and the public at large.

Under the rules established under the Classified Information Procedures Act, the defense has the right to access certain classified documents from the government that may be relevant to Winner’s case. In response, the government filed for a protective order that will prevent the defense team from revealing the classified information in those documents in its legal filings or to the public.

A protective order surrounding discovery material, by itself, is fairly standard procedure. However, the government is going a step further: They are arguing that the defense would be barred from discussing any information that has appeared in the Washington Post, the New York Times, or any other newspaper if the defense “knows or have reason to know” any of that information is also contained in classified discovery documents they will receive.

The protective order would restrict “our right to cite and quote information in the public domain, such as articles in newspapers, broadcast journalism and online publications,” the defense wrote in their brief. “The order proposed by the Government imposes upon Defense Counsel the duty to question the source of reports in the New York Times or matters discussed on Morning Joe and then to confer with the security officer before repeating or citing these facts even though the information is clearly in the public domain.”

Essentially, the government is trying to bar Winner’s lawyers from discussing large swaths of journalism done around the election, cybersecurity, the Trump administration, and Russia in court, unless each time, they go back and scour thousands of pages of documents to make sure none of their references are also cited in the documents that were handed over.

This is a critical point given that the trial may hinge on whether the prosecution can prove the document Winner is alleged to have leaked could have “damaged” national security. Winner’s team may want to use these stories to provide the jury with much-needed context around the document at issue — to show, for example, that the public interest in election security is extremely high, or that leaking the material in question couldn’t possibly have damaged national security given the mountains of stories about Russian hacking that came before it.

Think about it: Literally everyone in the country has been talking about alleged Russian attempts to influence the 2016 presidential election. It has not only been the subject of front page stories in the nation’s leading newspapers on an almost daily basis, but it has been publicly discussed by virtually every member of Congress, all the intelligence chiefs, and Presidents Obama and Trump. Yet much of this discussion could be barred from the public courtroom if the government has its way.

What’s more, the government argues that Winner herself isn’t allowed to see any of the classified documents handed over to her lawyers at all. As the defense writes in their brief: “The Sixth Amendment right to counsel includes the right to confer with counsel.” What the government is essentially doing here is cutting Winner out from her own defense team, which may have to make key arguments in the case without being able to consult with her about the relevant facts. As her lawyers make clear, “Her telephone calls are taped, and all of her outgoing mail is being reviewed by Government agents. There is no risk to national security that could flow from her being allowed to view the evidence that may be used against her.”

These tactics are likely just the beginning of the government’s attempts to cut off virtually every avenue of defense for Reality Winner. The Justice Department has been cruelly effective in all of the Espionage Act cases aimed at the sources of journalists in recent memory.

Since Pentagon Papers whistleblower Daniel Ellsberg’s days, sources charged under the Espionage Act have been prohibited from explaining their motive to their jury — e.g., informing the public — for leaking information to journalists. Or take the example of Thomas Drake, the NSA executive who was indicted for allegedly giving information on NSA waste, fraud, and abuse to the Baltimore Sun in the mid-2000s. The Justice Department filed briefs in his case demanding that Drake not even be allowed to say the word “whistleblowing” or make any arguments related to the government’s rampant overclassification epidemic in front of the jury. In other cases, prosecutors have convinced judges they don’t have to show actual harm to national security, only the potential for such harm — a much lower bar.

"Since when do local courts have the power to censor domains worldwide? One Canadian court decides that it does. Not only did it order Google to delete the site from its search results on the Canadian “Google.ca” domain, it went even further by demanding it censor the domain worldwide by deleting every instance of the site from its index. Such a ruling could have terrifying global consequences."

Canadian Court to the Entire World: No Links For You! | Electronic Frontier Foundation

Quote:

The Supreme Court of British Columbia has ordered Google to remove entire domains from its search results — a decision that could have enormous global implications on free expression. This is the latest of several instances of courts exercising dangerous jurisdictional overreach, where they have applied local laws to remove content on the Internet. Not only did the Court order Google to delete the site from its search results on the Canadian “Google.ca” domain, it went even further by demanding it censor the domain worldwide by deleting every instance of the site from its global index.

The case, titled Equustek Solutions Inc. v. Jack, involved a trade secret fight between two Canadian companies. One sued the other for allegedly stealing the designs of some of their products and selling them on their website. The plaintiff claimed that Google facilitated access to this illegitimate online vendor through its search platform. Initially, Google voluntarily took down specific URLs that directed users to those products and ads under the local Google.ca domains, but the Court decided that was not enough. The judge ultimately ruled that Google must delete the entire domain from its search results, including all other local domains such as “Google.go.uk” and even the main site “Google.com”.

Oddly, the judge in this case seemed unfazed by the wide-ranging implications of this order. Based upon the assumption that users would simply switch to other variants of the Google domain, she decided that for any blockage ruling “to be effective, even within Canada, Google must block search results on all of its websites” and that any other external impacts are a “separate issue.”

The decision is a massive overreach. The removal of the defendant's entire domain from Google's local Canadian sites would have already been excessive. Although it cannot be confirmed from official reports, this one could have carried other legitimate products unrelated to the plaintiff's designs, or even hosted a blog or discussion forum with other users' comments and submissions. For example, the U.S. seized and took down the hip-hop culture website, Dajaz1.com, due to some allegedly copyright infringing works that was shared on the platform even while most of the site’s pages contained lawful content. It's not clear whether such considerations were made at all, and that is terrifying on its own.

But the court went even further, ordering Google — a company based outside its jurisdiction in California — to censor the site worldwide. If left unchallenged, this could leading to a slippery slope of ever more countries feeling empowered to mandate global online censorship. If a Turkish court were to find that a certain protest site was illegal, would intermediary services like Google be forced to remove all references of the domain name from its site? Or if Ethiopia mandated the deletion of all sites referring to imprisoned journalist, Eskinder Nega, would online platforms be forced to comply with that order?

Those are only a few examples of how such a precedent could dangerously expand. If courts become empowered to demand intermediary platforms remove and take down domains worldwide, that could be the end of online free expression as we know it. And if history has taught us anything, authorities are very good at creatively constructing legitimacy to shut down speech. This case alone is evidence of that: the judge mentioned that she was inspired by the recent EU rulings on the “right to be forgotten,” and felt that forcing global removals was just a way to “keep up with the times.”

We can imagine how problematic this would be if it were applied to copyright infringement. There is already a history of cases in which government agencies have taken down entire domains over allegations of content piracy. The United States has been especially guilty of this. One of the most glaring cases involve Immigrations and Customs Enforcement (ICE), when it took down a Spanish sports streaming site, Rojadirecta. It is alarming that any government agency, anywhere in the world, would have the authority to unilaterally remove an entire website, especially when doing so may violate another country's strong legal protections for the right to free expression. This kind of forceful takedown of domains is exactly the kind of sweeping censorship that what we fought against in the SOPA and PIPA bills defeated over two years ago. No matter what the charges are, there is no reasonable justification for intermediaries to block an entire website over content that only some of the pages contain.

Thankfully, Google has indicated that it intends to appeal the decision to prevent this from becoming a dangerous new precedent. It is as important as ever that intermediaries, such as search engines, Internet service providers, and domain name registrars, be protected as neutral platforms. They are often attractive targets for those who want those services to help them remedy alleged wrongdoing. But dragging intermediaries into court as implicit facilitators of unlawful activity creates a wide range of negative, unintended consequences for the Internet. Just because a party has been wronged does not mean that they are entitled to any and all remedies. Going after intermediaries is an easy shortcut, but one with too many costly ramifications.

In June, Canada's Supreme Court came down on Google — hard. It ruled that the tech giant must take down certain Google search results for pirated products. And not just in Canada, but globally. Now, Google is going south of the Canadian border to push back on this landmark court ruling. The tech giant filed an injunction Monday with the US District Court for Northern California, arguing that globally removing the search results violates US law, and thus Google should not be forced to comply with the Canadian ruling.

Because the case had already made its way to the highest court in Canada, Google should have not been able to fight the ruling. But Google is hoping to find a loophole on American soil by arguing this violates the First Amendment.

“We’re taking this court action to defend the legal principle that one country shouldn’t be able to decide what information people in other countries can access online,” says David Price, senior product counsel at Google. “Undermining this core principle inevitably leads to a world where internet users are subject to the most restrictive content limitations from every country.”

Google’s resistance to the ruling comes at a time when court orders to remove content worldwide are surging. Last month Germany passed a law ordering social media companies that operate in the country to delete hate speech within 24 hours of it being posted or face fines of up to $57 million. In May, an Austrian court ruled that Facebook must take down hateful posts directed at the country’s Green party leader. And the European Union’s top court is poised to decide whether the bloc’s “right to be forgotten” laws should extend beyond Europe’s borders. Around the world, there are dozens more cases around global takedown requests that are pending.

The problem, according to internet law experts, is that allowing country-specific social media laws to stand worldwide could set a troubling precedent. One country’s idea of acceptable speech may be another’s idea of hate speech, for instance. Countries with sharply diverging definitions of what is allowable online speech could leave us with a fractured “splinternet,” where what you see online depends on what is OK, culturally, wherever you happen to be accessing the internet. And that could threaten the global internet itself.

Tech companies — including Google, with its latest legal maneuvering — aren’t going down without a fight. But staunch resistance won’t solve its problems, says Vivek Krishnamurthy, assistant director of Harvard Law School’s Cyberlaw Clinic, who specializes in international internet governance. “Yes, Google may end up getting a favorable decision from a US court. But it won’t stop the plaintiff from seeking enforcement in Canada,” says Krishnamurthy. “And Google faces legal and economic risks if they don’t comply with Canadian law. It adds up to a really hard business decision for the company.”

Easy Peasy Piracy

For the uninitiated: last month, a landmark decision was reached in Google v. Equustek, a case in which a British Columbia-based technology company called Equustek accused Datalink Technology Gateways, a distributor, of selling what was essentially a repackaged Equustek product. Datalink first denied any wrongdoing, then fled the country, never appearing in court — and it continued to do business outside of Canada.

As the legal saga unfolded, Equustek asked Google to take down search results for Datalink websites, which Google voluntarily did — but only on Google.ca, the country-specific version of the search engine. But Equustek appealed to higher courts and continued to pursue a global takedown of search results. The company scored big when the Supreme Court of Canada rejected Google’s argument that freedom of expression should have prevented Google from having to comply with the global order. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods,” the court wrote in its ruling. “The problem, in this case, is occurring online and globally. The internet has no borders; its natural habitat is global.”

It’s tempting to view this as a cut-and-dry case in which the problem — piracy — is a clear enough crime that a global takedown of search results is deserved. But bad cases make for bad laws, Krishnamurthy argues. “It was easy for the Canadian court to say, ‘Hey, piracy! Of course take it down,’ over something else,” he says. “But you have to decide the case as it’s given to you.” Still, the ruling sets a bad precedent for other actors with other rationales trying to get Google to wipe search results globally.

A Tough Business Decision

Krishnamurthy says he’s reminded of a case that goes back to 2000, when a French nonprofit organization asked Yahoo to take down content and materials that promoted Nazism. The French court sided with the group, but Yahoo filed a follow-up complaint with the US District Court for Northern California, arguing that if the French judgment were to be enforced against the company, it would violate the US's First Amendment. (Sound familiar?)

Yahoo ended up winning an early victory in court, but lost on appeal. It’s the same problem in the Equustek v. Google case, Krishnamurthy says: the burden is on Google to demonstrate to a US court that a Canadian actor will bring an enforcement action in the US. “Unless they can show that, a US court is likely to say the situation is hypothetical,” Krishnamurthy says. Still, if Google insisted on keeping the objectionable content available online, it doesn’t rid the company of the problem, he points out. “That doesn’t stop Equustek from going to Canadian court and saying, ‘Google didn’t comply, it is now in contempt. Seize its assets, throw its executives in jail,’” Krishnamurthy says. “There are any number of enforceable actions on the Canadian side of the border.” Looking at precedent, Krishnamurthy says it’s a risk Google likely won’t want to take.

However there is nothing stopping Google from leaving the search results as is; it's a private actor and can do whatever it wants under the First Amendment. But take the Yahoo case. The company ended up voluntarily complying with the takedown request on a global policy. “It ultimately decided that it was bad for business for the platform to keep selling the Nazi stuff,” says Krishnamurthy. Removing the results might be the easier option for Google. “The First Amendment is a shield, not a sword,” says Krishnamurthy.

So why make the noise about filing the injunction in the first place? “It’s the thin edge of the wedge problem,” says Krishnamurthy. Google wants to push back for principled reasons, for business reasons, and to signal to others that it won’t bend over and take potentially worse decisions — like the one coming up in the EU’s top court enforcing its “right to be forgotten” laws globally. But most importantly, Google likely won’t want to turn itself into a less useful product for people. “There’s a bit of enlightened self-interest here,” says Krishnamurthy. As more and more countries make more demands of Google and mess with its results, the quality of the search tool itself declines.

Yet Google faces legal and economic risks if it doesn’t comply with Canadian law. Whatever the tech giant ultimately decides to do, the company is contending with a very difficult business decision.